Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005997

First-tier Tribunal No: PA/00755/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
15th August 2025

Before

UPPER TRIBUNAL JUDGE LODATO

Between

BH
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Unrepresented
For the Respondent: Mr McVeety, Senior Presenting Officer

Heard at Phoenix House (Bradford) on 14 July 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. I have decided to maintain the anonymity order originally made in these proceedings by the First-tier Tribunal because the underlying claim involves international protection issues in that the appellant claims to fear persecution or serious harm on return to their country of origin. In reaching this decision, I am mindful of the fundamental principle of open justice, but I am satisfied, taking the appellant’s case at its highest for these purposes, that the potential risks outweigh the rights of the public to know of his identity.
2. Following the resumed hearing of this appeal on 14 July 2025, I now remake the decision and provide my reasons. The background to the appeal is set out in my error of law decision, dated 23 May 2025. In short, the appellant’s appeal against the refusal of his international protection claim was dismissed by the First-tier Tribunal (‘FTT’). The judicial findings which went to this ground of appeal were not disturbed on appeal and continue to stand meaning that the appellant does not have any lawful basis to be in the UK. However, at the error of law hearing, I concluded that the FTT erred in law in the approach taken to the appellant’s Article 8 human rights ground appeal. The decision was set aside without preserving any findings of fact which went to this part of the decision.
Legal Framework
3. Article 8 of the ECHR provides:
(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
4. The Immigration Rules regulate how the respondent will seek to balance the right to a family and private life under Article 8 against the wider interests of society.
5. S.117A of the 2002 Act provides that a tribunal adjudicating on whether Article 8 has been breached by a decision under the Immigration Acts, must have regard to the public interest factors specified in s.117B.
6. At [17] of his judgment in Razgar v SSHD [2004] 2 AC 368, Lord Bingham identified a series of questions that a tribunal should ask itself when faced with an appeal that raises an Article 8 issue. In the present matter, the parties agreed that it was only the final question which was in issue, whether the refusal decision was a disproportionate interference with the engaged Article 8 rights. It is well-settled in this jurisdiction that the assessment of proportionality is best undertaken by adopting a balancing exercise which takes into account the factors weighing in favour of the appellant’s and their family’s personal interests against the public interest in maintaining effective immigration controls.
8. If the fifth question relating to proportionality is reached, Lord Bingham, in his judgment in Huang v SSHD [2007] 2 AC 167 at paragraph 20, provided further guidance as to how this should be assessed:
[…] the ultimate question for the appellate immigration authority is whether the refusal of leave to enter or remain, in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by article 8. If the answer to this question is affirmative, the refusal is unlawful and the authority must so decide. It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets a test of exceptionality.
9. In CAO v SSHD [2024] UKSC 32, the Supreme Court recently considered how tribunals should approach the best interests of a relevant child and the duties which arise under s.55 of the Borders, Citizenship and Immigration Act 2009 in the context of an Article 8 human rights appeal. Lord Sales and Dame Siobhan Keegan said this at [64] of their judgment:
[…] Whilst there is an undoubted overlap in terms of the relevant considerations in play, the proper view, in our judgment, is that the FTT is subject to a duty to comply with article 8, which imports an obligation to treat the best interests of the child as a primary consideration, and is not separately subject to any duty under section 55(1) or (3). Also, since the FTT is required to make its own determination under article 8 and is required in doing so to have regard to the best interests of a child as a primary consideration on the basis of fresh and up-to-date evidence, its decision supersedes the decision of the Secretary of State and becomes the relevant operative decision which is determinative of what happens to the child.
The Remaking Hearing
10. At the remaking hearing, I permitted the unrepresented appellant’s partner to support him as a McKenzie friend. She sat alongside him while he gave his oral evidence with the assistance of an Arabic interpreter. I allowed her to use a laptop to take notes but asked her to close it when it appeared that the appellant was looking at the screen while he gave his evidence.
11. I heard submissions from the parties. I address any submissions of significance in the Findings and Reasons section below.
Summary of key evidence and issues in dispute
12. During the appellant’s oral evidence, he explained that he saw his son once or twice a week for approximately 3-4 hours at a time. These meetings were in public places because the appellant was not welcome to visit his former partner’s home, and his shared accommodation was not suitable. These broad arrangements had been in place for approximately a year and a half to 2 years. He did not have regular direct contact with his son’s mother and generally communicated through her mother. He had broached the topic of whether they would be inclined to facilitate visits outside the UK if he were returned to Tunisia and was informed that there was no prospect of this being allowed to happen. He was unable to provide anything more than token and occasional financial support because of his limited means as a failed asylum seeker without the right to work.
13. Under cross-examination, the appellant confirmed that he was not an emergency contact at his son’s nursery and that he had not played a role in deciding where he should receive childcare. Much of the focus of questioning was directed to why the child’s mother had not supported the appeal with direct narrative evidence to which the appellant said that she had provided a copy of their son’s birth certificate and photographic evidence to assist him. While they did not communicate directly, they respected each other and were not on bad terms.
14. The appellant relied on a series of photographs which showed him with his son in various settings. It could be seen that the appellant has shared face-to-face contact with his son at various stages of his young life.
15. The respondent agreed that the only issue to be resolved in remaking the appeal was whether the refusal decision amounted to a disproportionate interference with the appellant’s, and his son’s, Article 8 rights to a family life. Mr McVeety accepted during his oral submissions that if I were to find that the appellant’s return to Tunisia would be adverse to his son’s best interests as a child that this would be a powerful factor on the appellant’s side of the scales.
Findings and Reasons
16. It was suggested by Mr McVeety that the nature of the relationship shared between the appellant and his young son was not so strong that his removal to Tunisia would have a significant adverse bearing on his son’s best interests as a child. I have no difficulty in rejecting this notion. The appellant may not share a home with his son, and is restricted to weekly visits, but to suggest that his removal would have no meaningful impact is somewhat divorced from the reality of the vital importance of parental relationships for young children. Even without hearing from the appellant’s son or his mother in evidence, it is an extravagant suggestion that this young child would not keenly feel the absence of his loving father even if he only sees him on a weekly basis. It is well-established, and needs no authority, that children are best placed to thrive and develop when under the care of both parents even if they are not in a continuing relationship with each other, or where caring responsibilities are not shared equally. The bonds forged between a child and their parents at the beginning of that child’s life shape the people they become. This is when children begin to understand the world around them through the prism of their primary family relationships. It would be surprising in the extreme if this young child did not significantly benefit from the several hours a week he spends with his father.
17. The appellant’s child is currently growing up and developing under the influence of his father through weekly visits. It is more likely than not that he will have a very different childhood without his father in the UK playing an active part in his life. His early development and social growth is partly being shaped during the time he spends with his father. While it must be acknowledged that his mother and her immediate family, and current partner, may play a bigger role in that they spend more time with him, the best interests of a child are not to be considered in a crude zero sum game. The wide variety of relationships enjoyed by a young child feed into the people they mature into. It was not suggested that the appellant has anything other than his son’s best interests at heart and that he is fully invested in being the best father he can be while not sharing a home with his child.
18. If the appellant were to be returned to Tunisia, I am satisfied that the nature of their relationship would change irrevocably. Contact by media such as video calls would be a poor substitute for the kind of face-to-face engagement the child currently enjoys with his father. It was suggested that I should be slow to infer that there would not be face-to-face visits after the appellant’s return especially considering that there was no evidence from the child’s mother. The very fact that she was not inclined to go to the trouble of even giving up a day to give evidence on the appellant’s behalf gives an insight into her willingness to facilitate visits between her son and the appellant outside the UK. The reality is that the appellant would be most unlikely to be found by an entry clearance officer to intend to return to Tunisia after a visit to the UK in view of his failed bid to be granted refugee status. Assessing the evidence in a ‘real world’ context, the only rational conclusion to draw is that the appellant’s removal would inevitably bring about an indeterminate end to the father/son relationship which this young child currently enjoys and benefits from. On no sensible analysis could it be said that this child’s best interests would be served by any other arrangement than continuing to benefit from regular face-to-face contact with his father.
19. I am satisfied that such a separation is manifestly and seriously against the appellant’s son’s best interests as a child. The law is clear that this functions as primary, but not paramount, factor in any proportionality balancing exercise. As Mr McVeety rightly recognised, this finding is a powerful factor in favour of the appellant’s case that the refusal decision amounts to a disproportionate interference with his and his family’s Article 8 human rights.
20. On the other side of the scales are the public interest factors which weigh in favour of the refusal decision. There is a strong public interest in the maintenance of effective immigration controls. The appellant does not meet the requirements of the relevant parts of Appendix FM of the Immigration Rules, and he has no other lawful basis of stay in the UK. He willingly entered into a relationship with his former partner which produced a child at a time when his status was plainly precarious. This all weighs against him, but I must also keep in mind that the child is entirely blameless in the decisions taken by his parents. Mr McVeety did not address me on any of the other factors under s.117B of the 2002 Act, but they remain of importance and fall to be considered. It was clear during the hearing that the appellant has some grasp of English as he occasionally slipped into his second language as he gave his evidence. However, an interpreter assisted him. His limited ability to speak English weighs against him in the overall balance, but not to a significant degree in the circumstances. The appellant is not financially independent while he does not have the right to work, but I have no reason to doubt his unchallenged evidence that he is keen to secure employment to support his son if he secures the right to remain and work in the UK. This too only marginally weighs against him in the balance. I attach little weight to the private life he has established while in the UK on a precarious footing.
21. When I balance the competing factors, the factors weighing in favour of the appellant and his son’s family life considerably outweigh those in favour of the public interest. The reality is that their shared family life cannot be enjoyed anywhere other than the UK. If the refusal decision stands, the appellant’s son will be deprived of the meaningful presence of his father in his life. Striking a fair balance, I conclude that the refusal decision is a disproportionate interference with their family life. In addition, the removal of the appellant would bring about unjustifiably harsh consequences for the appellant’s blameless son in effectively depriving him of a loving father whom he sees regularly and who is having a positive influence on his life and upbringing.
22. I find that the refusal is a disproportionate interference with the Article 8 rights of this family to share a family life in the UK, the only country where their family life can reasonably and realistically be enjoyed.

Notice of Decision
On remaking the appeal after setting aside the decision of the First-tier Tribunal, I allow the appeal on Article 8 human rights grounds.

Paul Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

24 July 2025